June 07, 2012 "Information
Clearing House"
-- Washington routinely criticizes despotic regimes where
officials exercise the power of life and death without
restraint. President Barack Obama is such an official.

The U.S.
has been fighting the “war on terrorism” for more than a decade.
Washington has turned targeted killing — or assassination — into
routine practice. The military deploys SEALs when the job needs
to be close and personal, like killing Osama bin Laden. But
drones are the preferred tool of choice. The administration
claims to have recently used one to kill al-Qaida’s number two
man, Abu Yahya al-Libi, in Pakistan.

This new
form of warfare raises fundamental questions for a
constitutional republic. International law bars arbitrary
killing. Domestic law further restricts the execution of U.S.
citizens. Moreover, promiscuous assassinations move foreign
policy into the shadows, reducing public debate over basic
issues of war and peace.

The issue
ended up in federal court in August 2010 when Nasser al-Awlaki
filed suit seeking a preliminary injunction to prevent the Obama
administration from executing his son, Anwar al-Awlaki. The
latter had been added to the federal “kill list” for his
activities in Yemen with al-Qaida in the Arabian Peninsula (AQAP).
The judge dismissed the lawsuit on procedural grounds and Anwar
was later killed by a Predator drone.

Limits on
government are necessary to preserve a liberal democratic order
and protect individual liberty. The potential for abuse is
greatest where state power is most extreme. There is no more
extreme power than the power to kill.

After
9/11, one could view terrorism as a form of war, but the
authorization of force passed in response more than a decade ago
targeted people who since have been mostly killed or captured —
those who “planned, authorized, committed, or aided” the 9/11
attacks. To legitimize presidential action today, Congress
should vote for a declaration of war directed against present
threats to America.

Moreover,
if the U.S. is fighting a war, it should be conducted by the
military under the president as commander-in-chief. The CIA
should develop intelligence for use by the Pentagon in targeting
its weapons, in this case drones. But the military should do the
shooting. Of course, civilians at the agency are as capable as
uniformed personnel at the Department of Defense at directing
drones. However, giving responsibility to the CIA strips the
process out of its war-related context, making it easier to
deploy drones in less justifiable circumstances.

Some claim
that Congress has secretly given the agency authority to kill.
However, while operational matters are appropriately kept
secret, legal authority to conduct lethal operations is not.
Americans should know who is doing what in their name.

Those
killed must be combatants. A leader, like al-Libi, of a hostile,
violent terrorist group engaged in an ongoing campaign to harm
Americans may be treated as the functional equivalent of a
commander of a foreign military fighting against the U.S.
Membership could count too, at least if someone is trying to
kill Americans and has some potential of succeeding. But most
terrorists don’t make videos confirming their status. And
intelligence is imperfect: In the aftermath of 9/11, many
non-terrorists were arrested at home and detained overseas. Some
were imprisoned and tortured.

According
to a recent New York Times report, which relied on information
that was likely leaked to enhance the president’s national
security credentials, the administration has established a
regular inter-agency meeting at which administration officials
debate who to kill. It is presented as rigorous and demanding,
yet the president’s chief political adviser, David Axelrod,
reportedly attends (though he claims he does not). Supposedly
members freely challenge targeting proposals, but there is no
independent person to question administration priorities or
review administration actions. The article presents the
president as a wise, judicious, and principled arbiter, but even
if so, he should be held accountable for his decisions.

The U.S.
must minimize the deaths of noncombatants. Admittedly, this is
especially difficult where there is no traditional battlefield
upon which most of the fighting occurs. The irregular nature of
terrorism means members of threatening organizations often live
and operate in the midst of civilian communities. Mistakes are
easy to make.

However,
concern for noncombatants should be an obvious moral imperative.
Terrorism is outrageous because it targets those who have done
nothing wrong. What if counter-terrorism kills the innocent,
even if inadvertently? The Times story notes the possibility of
“explicit intelligence posthumously proving” people to be
innocent, but there is no medical procedure to posthumously
unkill people — at least not yet.

The other
reason to kill only real terrorists targeting Americans is
prudential: Mistakes create terrorists. It doesn’t take an
investigative journalist to recognize that hostility toward the
U.S. continues to rise in both Pakistan and Yemen along with the
number of drone strikes. And that should surprise no one:
Americans would react badly if another power, say China, was
routinely lobbing missiles into American neighborhoods, killing
people, even if it was doing so in the name of fighting
terrorism. The enemies created are not limited to the nations
targeted. Faisal Shahzad, a U.S. citizen, cited drone attacks as
justification for attempting to set off a bomb in New York
City’s Times Square.

Unfortunately, the administration has yielded to temptation and
expanded the kill list to include people like Baitullah Mehsud,
the head of the Pakistan Taliban. The Times notes that the U.S.
killed Mehsud in 2009 even though his group “mainly targeted the
Pakistan government.” The administration rationalized “that he
represented a threat, if not to the homeland, to American
personnel in Pakistan.”

U.S.
officials also admit that they were played by former president
Ali Abdullah Saleh of Yemen: “There were times when we were
intentionally misled, presumably by Saleh, to get rid of people
he wanted to get rid of,” one unnamed official told The
Washington Post. Yet the U.S. campaign in Yemen recently has
been broadened to operatives who supposedly pose a threat not to
Americans in America, but Americans in Yemen. Reported The Post:
“A growing number of attacks have been aimed at lower-level
figures who are suspected of having links to terrorism
operatives but are seen mainly as leaders of factions focused on
gaining territory in Yemen’s internal struggle.”

No
provision of the U.S. Constitution or law — at least, that is
publicly known — authorizes the president to kill as a favor for
other governments. Moreover, treating others as enemies
naturally turns them into enemies.

There are
lots of bad people in the world, but even if they don’t like
America they might not plan on doing Americans ill. However, if
the U.S. starts dropping drones on them, they likely will change
their plans to include the U.S. Which in turn will be used by
Washington to justify dropping even more drones on them. The
administration claims to operate on narrow criteria, but if so,
the rising use of drones suggests that the administration is
doing something very wrong to generate so many new terrorists.
Shahzad approached the Pakistan Taliban rather than al-Qaida for
assistance — and it obliged. As my Cato Institute colleague
Malou Innocent has pointed out, the estimated number of members
of AQAP has more than doubled over the last three years —
despite supposedly killing many of them through drone strikes.
Notes The Times: “Drones have replaced Guantanamo as the
recruiting tool of choice for militants.”

In short,
Washington intervenes and creates enemies in other nations,
which it uses to intervene again to kill those new enemies in
other nations. And so the process continues, in a potentially
infinite cycle.

Worse,
though, from both a moral and practical standpoint, is the
killing of noncombatants. The administration has variously
claimed that none recently have been killed or that the number
is very low. But as The Times reports, “In Pakistan, Mr. Obama
had approved not only personality strikes aimed at named,
high-value terrorists, but signature strikes that targeted
training camps and suspicious compounds in areas controlled by
militants.” It seems that the administration equates living in a
“suspicious compound” with planning an attack on America.

Analysts
with the New America Foundation and the London-based Bureau for
Investigative Journalism figure that hundreds of innocents have
died. Even administration officials admit that earlier strikes
have gone awry, but they argue that such inaccuracies are a
thing of the past. While it is widely agreed that fewer
civilians are being killed now than were a few years ago,
residents of targeted areas respond with incredulity to the
administration’s claim of immaculate assassination.

In fact,
Washington’s asserted accuracy appears to be by definition.
According to The Times, the administration “in effect counts all
military-age males in a strike zone as combatants, according to
several administration officials, unless there is explicit
intelligence posthumously proving them innocent.
Counterterrorism officials insist this approach is one of simple
logic: People in an area of known terrorist activity, or found
with a top al-Qaida operative, are probably up to no good.” So
living next to or talking with a possible terrorist now is a
death sentence?

Drones can
be highly effective, as reflected in al-Libi’s killing, and may
be the best among bad alternatives. Certainly launching drones
is better than launching invasions. However, law, morality, and
prudence all require that drone use be strictly limited and
controlled.

The
problem with executive execution is even greater when those
targeted are American citizens. The U.S. government can kill
Americans — the police do so every day. However, officers must
act under lawful authority against an imminent threat and kill
as a last resort. Such actions must be subject to “strict
scrutiny,” as the courts put it. Similar criteria should apply
when dealing with Americans overseas. The president has no
authority to kill his fellow citizens for the convenience of
foreign leaders or because they are criticizing Washington
rather than threatening Americans.

Anwar
al-Awlaki is the most celebrated case. But The Times reports
that several Americans, including teenagers, also are on the
U.S. kill list.

The
administration apparently produced a 50-page memo on al-Awlaki’s
alleged terrorist role, but refused to release the document even
after his death. Allowing the president and his aides to compile
kill lists in secret with no charges filed, no outside review of
evidence, and no oversight of decisions should concern every
American. Unreviewable and unaccountable power is inconsistent
with a constitutional republic.

At the
very least the administration should create a formal process
with internal checks and balances. However honest such an
internal review might be, it still would not be enough.

The
nation’s founders created a system to constrain government
irrespective of who was in office. Electronic surveillance of
foreign powers and their agents, which could include Americans,
posed a similar challenge, causing Congress to approve the
Foreign Intelligence Surveillance Act. FISA allows surveillance
of foreign parties without a court order, but requires a
warrant, granted by a special court, for Americans.

Congress
could create a similar process for targeted killings.
Legislators should establish special national security courts to
grant formal assassination warrants. The government would have
to demonstrate that a serious threat to life was imminent and
there was no reasonable alternative to execution. Judges would
be trained to assess intelligence claims. A warrant would allow
the government to place a name on an official kill list for a
set period of time; renewal would require a return trip to
court. Such a process would be an ugly second best, but far
better than today’s system of unfettered executive discretion.

More
fundamentally, Americans should reconsider Washington’s
promiscuous military intervention abroad. Constantly meddling in
foreign conflicts costs American lives, wealth, and liberty.
This interventionist foreign policy also inevitably
creates hostility and
encourages terrorism. Indeed, Washington’s “war on
terrorism” has left Americans less secure and free.

Osama bin
Laden and terrorists like him long ago lost the military aspect
of the war on terrorism. But they succeeded in transforming the
U.S. Amazingly, most Americans view as unexceptional the
president’s claim to unilateral power to kill anyone anywhere in
the world. If we forget that we are securing a constitutional
republic, we risk losing the freedoms which make America unique
and worth defending. Then the terrorists truly will have won.

Doug
Bandow is a senior fellow at the Cato Institute and the author
of several books, including Foreign Follies: America’s New
Global Empire (Xulon). A former Special Assistant to President
Ronald Reagan, he is a graduate of Stanford Law School.